WILLIAM H. ORRICK, District Judge.
Petitioner Octavio Vivano presents five claims as part of his petition for federal habeas relief from his state convictions: (1) the limitation on cross examination of the victim violated his Confrontation Clause right; (2) the admission of the victim's statement about race in the sexual assault report violated his Confrontation Clause right; (3) trial counsel rendered ineffective assistance by failing to object on federal constitutional grounds to the limitation on cross examination; (4) trial counsel rendered ineffective assistance by failing to explain to the trial court pertinent facts about a prior incident involving the victim; and (5) appellate counsel rendered ineffective assistance by failing to present an ineffective assistance of trial counsel claim for number 3 on direct appeal. Each of these claims lacks merit. The petition is DENIED.
The following factual background is taken from the July 25, 2016 unpublished opinion of the California Court of Appeal on Vivano's direct appeal:
Answer to Order to Show Cause ("Ans.") Ex. D [Dkt. No. 15-6] ECF page 19 at 2-3, (People v. Vivano, No. A141737, 2016 WL 3983180 (Cal. Ct. App. July 25, 2016) (unpublished)).
On February 5, 2014, a jury in Alameda County Superior Court found Vivano guilty of four counts of forcible rape while acting in concert in violation of California Penal Code sections 264.1(a) and 261(a)(2), and found true allegations that he kidnapped the victim in the commission of the rape in violation of California Penal Code sections 667.61(e)(1) and 667.8(a). First Petition for Writ of Habeas Corpus ("Pet.") ¶¶ 1-3 [Dkt. No. 1]. He also was convicted of one count of kidnapping to commit another crime in violation of California Penal Code section 209(b)(1) and one count of assault by means likely to produce great bodily injury in violation of California Penal Code section 245(a)(1). Id. On March 7, 2014, Vivano received a sentence of 52 years to life in state prison. Id. ¶ 4.
Vivano appealed his conviction in the California Court of Appeal raising some of the same claims he asserts here.
On November 20, 2017, Vivano filed a petition for habeas relief before the California Supreme Court, raising a confrontation clause claim, an ineffective assistance of trial counsel claim, and an ineffective assistance of appellate counsel claim. See Ans. Ex. J [Dkt. No. 15-7] ECF page 2. On January 3, 2018, while that petition remained pending, he filed this federal petition, along with a motion to stay this proceeding until the state court had disposed of his unexhausted claims. See First Motion for Stay and Abeyance [Dkt. No. 2].
On February 21, 2018, the California Supreme Court summarily denied Vivano's petition for writ of habeas corpus. Ans. Ex. K [Dkt. No. 15-7] ECF page 63. On March 1, 2018 the case was assigned to me, and on March 6, 2018, I denied as moot Vivano's motion for a stay. Order Setting Briefing Schedule [Dkt. No. 12].
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
Vivano alleges that the trial court violated his Confrontation Clause right by limiting cross-examination of the victim and by admitting the victim's statement identifying her attackers' race; that his trial counsel was ineffective for various reasons; and that his appellate counsel was ineffective for failing to raise one argument for ineffective assistance of trial counsel.
Vivano argues that the trial court violated his confrontation right by (1) limiting cross-examination of the victim regarding a prior incident that occurred in Las Vegas and by (2) admitting a statement from the SART report in which the victim indicated that her attacker was Hispanic. Vivano's first claim is barred from federal habeas review because it is procedurally defaulted. The second also fails because the court of appeal's decision was not objectively unreasonable.
Vivano claims that the trial court limited his right to cross-examine the victim in violation of the Sixth and Fourteenth Amendments. Pet. 16. While Vivano's trial counsel failed to object on confrontation grounds at trial, Vivano asserts that he can establish cause and prejudice to excuse procedural default because the failure to object was due to the ineffective assistance of trial counsel. Id. at 14-15.
Vivano presented this claim on direct appeal and in his petition for state habeas review. Ans. Ex. E 25-27, Ex. J 25-32. The court of appeal summarized the relevant facts as follows:
Ans. Ex. D at 12-13.
The court of appeal concluded that Vivano forfeited his confrontation claim by not raising it during trial. Id. at 14; see People v. Thornton, 41 Cal.4th 391, 443, 161 P.3d 3, 40 (2007), as modified (Aug. 15, 2007) (noting that "a party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct") (internal quotation marks and citation omitted). Because California's contemporaneous objection requirement is an "independent and adequate state procedural rule," federal habeas review is barred unless Vivano can show cause and actual prejudice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012); Ylst, 501 U.S. at 806 (concluding that federal review was barred where the California Court of Appeal found procedural default because of failure to object during trial). Specifically, Vivano must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The cause standard requires the petitioner to show, for example, that "some objective factor external to the defense impeded counsel's efforts to construct or raise the claim." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (internal quotation marks and citation omitted). A petitioner may show cause by establishing constitutionally ineffective assistance of counsel ("IAC"), but attorney error that does not rise to the level of a constitutional violation is insufficient to excuse a procedural default. See id. at 494; Carrier, 477 U.S. at 486-88.
This claim is not reviewable because Vivano has not shown cause and prejudice to excuse his procedural default.
Vivano contends that the court of appeal unreasonably denied his claim that admission of statement from the SART report identifying the attackers' race violated his confrontation right. Pet. 35-37. He argues that the SART examiner Debbie Goettseh was the declarant and her statements were testimonial, which means that the trial court violated his Confrontation Clause rights by admitting those statements when Goettseh was not available for cross examination. Id. He also asserts that the court of appeal applied the wrong standard for prejudice. Id. at 37-39.
The California Court of Appeal addressed this claim in its unpublished opinion of July 25, 2016. The California Supreme Court summarily denied review on appeal. Ans. Ex. I. Because the court of appeal was the last court to present a reasoned decision on this claim, I review its decision here. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).
On direct appeal, the court described the relevant background as follows:
Ans. Exh. D 8-9.
The court of appeal rejected Vivano's claim and reasoned as follows:
Id. at 9-10.
Even assuming Vivano's claim is not barred from federal review,
Even if Vivano could show that the nurse was the declarant and that admitting the statement was a Confrontation Clause violation, he cannot show that the court of appeal unreasonably determined that there was no prejudice. The court of appeal did not apply the wrong standard for prejudice as Vivano contends. The Chapman harmless error standard applies to a finding of prejudice for Confrontation Clause claims. See United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (noting that a court's considerations include "the importance of the evidence, whether the evidence was cumulative, the presence of corroborating evidence, and the overall strength of the prosecution's case") (quoting United States v. Bowman, 215 F.3d 951, 961 (9th Cir.2000)); see also Chapman v. California, 386 U.S. 18, 24 (1967). Vivano asserts that the court instead applied the "undermine confidence in the outcome" standard from Strickland and Bagley. Pet. 37-38; see Strickland, 466 U.S. at 694; United States v. Bagley, 473 U.S. 667, 681-82 (1985). He bases his argument on the following language from the court: "The fact that this nurse briefly testified about the race of the victim's attackers in a way that was consistent with the victim's own testimony does not undermine our confidence in the verdict." Ans. Ex. D at 10 (emphasis added). But the court clearly wrote that it found no prejudice "under any standard." Id. The single sentence he cites does not demonstrate that the court applied the wrong standard.
Moreover, the court did not unreasonably conclude that admission of the statement was a harmless error. Vivano acknowledges that "Goettsch's statement was cumulative in the sense that Doe also testified that her assailants were Hispanic."
For the reasons set forth above, Vivano's claim is denied.
Vivano asserts that his trial counsel was ineffective for three reasons: (1) he failed to object on confrontation grounds to the trial court's limitation on cross-examination of the victim; (2) he failed to accurately and completely relay the facts of the Las Vegas incident to the trial court; and (3) there was cumulative prejudice. For the first, Vivano has not met his burden to show that the Supreme Court of California had no reasonable basis to deny relief. For the second, the court of appeal did not unreasonably apply the Strickland standard to the facts of this case. Finally, Vivano did not exhaust the cumulative prejudice claim, and it is therefore barred from federal habeas review.
Vivano must make two showings in order to prevail on his IAC claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Id. at 687-88. Second, he must establish that counsel's deficient performance prejudiced him, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "Judicial scrutiny of counsel's performance must be highly deferential," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." See Strickland, 466 U.S. at 689; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). "There is a `strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than `sheer neglect.'" Harrington v. Richter, 562 U.S. 86, 109 (2011) (internal citation omitted). Counsel's failure to raise a meritless legal argument cannot give rise to an IAC claim. Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989).
Vivano asserts that his trial counsel provided ineffective assistance by failing to object on Confrontation Clause grounds to the trial court limiting cross-examination of the victim about the Las Vegas sexual assault. Pet. 24. He contends that there was no possible tactical reason for counsel to forgo such an objection, and therefore the failure fell below an objective standard of reasonableness. Id. The failure also prejudiced him. Id. at 24-26.
Vivano raised this claim in his habeas petition before the California Supreme Court. Ans. Ex. J at 32-34. The court summarily denied the entire petition. Ans. Ex. K. When presented with a state court decision that is unaccompanied by a rationale, a federal court must conduct an independent review of the record to determine whether the state court "clearly erred in its application of controlling federal law." See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). The review is not de novo; instead, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." See Harrington, 562 U.S. at 98.
As laid out in Section I.A, I concluded that review of Vivano's confrontation claim on the Las Vegas incident was barred because of procedural default given that he failed to object on Confrontation Clause grounds at trial. For purposes of determining whether that failure to object constituted IAC as Vivano contends here, I will address the merits of the underlying claim.
The relevant facts are stated in Section I.A. The court of appeal addressed the merits of the confrontation clause claim as follows:
Ans. Ex. D at 14-15.
Vivano asserts that the court identified the correct governing legal principles but unreasonably applied them to the facts in two respects. Pet. 16. First, by contrast with the court's conclusion that "the victim's credibility regarding her attack in Oakland was never seriously questioned," Vivano challenged victim's credibility of her account of events at the night of the attack and her identification of him. Id. at 17-21. Second, contrary to the court of appeal's conclusion that cross examination regarding the incident "would have added little, if anything, to the jury's evaluation of [the victim's] truthfulness," cross-examination could have cast doubt on her credibility and supported his theory that the victim had consensual intercourse with him while working as a prostitute on the night of the attack. Id. In addition, he contends that he suffered prejudice because the court's limitation on cross-examination hindered his ability to develop his misidentification theory. Id. at 21-23.
"[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original). Accordingly, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examinations based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' [sic] safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A defendant meets his burden of showing a Confrontation Clause violation by showing that "[a] reasonable jury might have received a significantly different impression of [a witness's] credibility . . . had [the defendant's] counsel been permitted to pursue his proposed line of cross-examination." Del. v. Van Arsdall, 475 U.S. 673, 680 (1986); see Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009) (applying the same standard). "A limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the witness." United States v. Urena, 659 F.3d 903, 907-08 (9th Cir. 2011).
Vivano's claim lacks merit. First, the court of appeal did not unreasonably conclude that the victim's credibility regarding her attack in Oakland was "never seriously questioned." Vivano concedes that he did not challenge her credibility with regard to her being raped by four men, but he asserts that he did challenge her account of the events, her identification of him as an assailant (the "main focus" of his defense), and her contention that she did not get into the car voluntarily. Pet. 17-18. But challenges on these topics do not make the court's conclusion unreasonable because they are peripheral to the victim's credibility regarding the fact of the attack itself. Moreover, testimony from other witnesses, such as Paul Principe, Officer Frugoli, and the SART nurse, corroborated the victim's testimony that she was attacked in Oakland. See 1RT 54-55, 182-184; Ans. Ex. B Reporter's Transcript Vol. 2 ("2RT") at 360-362. On this record, the court of appeal did not unreasonably conclude that there was little or no serious questioning of the victim's credibility regarding the Oakland attack.
Neither did the court unreasonably conclude that cross-examining the victim regarding the Las Vegas incident "would have added little, if anything, to the jury's evaluation of her truthfulness." Vivano was permitted broad cross-examination on issues including the victim's failure to identify him from the photo lineup, the possibility that she had engaged in consensual sex in the days prior to the sexual assault with a man she could not remember, and her memory of details from the night of her attack. See 1RT at 119-124, 139-144, 164-66. Given that (during his appeal) Vivano offered only speculation about the falsity of the Las Vegas report, the court did not unreasonably conclude that the cross-examination on that attack would not likely have added anything to the assessment of the victim's credibility. See Ans. Ex. D. at 13-14.
Finally, it is not likely that cross-examining the victim regarding the Las Vegas incident would have supported Vivano's defense theories, either based on misidentification or consensual sexual intercourse. As noted above, he cross-examined the victim on her credibility extensively. See 1RT 119-124, 139-144, 164-66. Still, the victim twice identified him in court as the driver by his physical characters, and DNA corroborated evidence her testimony. Id. at 45-46, 48-49, 165-66; Ans. Ex. B Reporter's Transcript Vol. 3 ("3RT") at 485; 2RT 312-14. In addition, he was able to—and did—assert that the physical evidence resulted from consensual sexual intercourse through the victim's alleged work as a prostitute. The victim admitted during cross-examination that she had "probably" had consensual sex with someone she could not remember days prior to her attack, and trial counsel questioned during closing argument whether the victim had worked a prostitute. See 1RT 164-66; 3RT 511-12. Therefore, Vivano received "a full and fair opportunity to probe and expose these infirmities through cross-examination." Fensterer, 474 U.S. at 22. Even if he had been able to cross-examine the victim about the Las Vegas incident, the court of appeal was not unreasonable to conclude that it would have "added little, in anything, to the jury's evaluation of her truthfulness." Accordingly, it was not unreasonable for the court to conclude that there was no Confrontation Clause violation.
Vivano asserts that his trial counsel provided ineffective assistance by failing to object on Confrontation Clause grounds to trial court's limitation on cross-examination of the victim about the Las Vegas sexual assault. Pet. 24. As the court of appeal concluded, the trial court's limitation on cross-examination of the victim about the Las Vegas incident did not violate the Confrontation Clause. Accordingly, a specific objection on that ground would have been meritless. Because failure to raise a meritless objection does not constitute IAC, Vivano has not met his burden to show that "there was no reasonable basis for the state court to deny relief" when the California Supreme Court summarily rejected this claim. See Harrington, 562 U.S. at 98. Finally, the court could have reasonably concluded that trial counsel's performance did not prejudice him.
Vivano's IAC claim based on his trial counsel's failure to object on confrontation ground is denied.
Vivano asserts that his trial counsel provided ineffective assistance by failing to accurately and completely relay the facts of the Las Vegas incident to the trial court. Pet. 26-27. He raised this claim in direct appeal to the California Court of Appeal and in a petition for review to the California Supreme Court, which summarily denied the petition. Ans. Ex. E at 27-29, Ex. H at 15-16, Ex. I. Vivano contends that court of appeal unreasonably applied the Strickland standard. Id. at 27-29.
Before trial, the prosecutor moved to bar admission of evidence of the victim's 2001 sexual assault in Las Vegas. Ans. Ex. B Reporter's Transcript ("RT") at 59. During motion in limine hearing, the trial court expressed an understanding of the incident as follows:
Id. When asked whether he had more information about the report, Vivano's trial counsel responded as follows:
Id. at 60-61. Vivano's trial counsel then stated that he wanted the option to cross-examine the victim about whether the 2001 event was a "false reporting." Id. at 61. When asked whether he had "any evidence whatsoever that it was a false report," Vivano's trial counsel indicated that he had only suspicions based on "some incongruence" in the report. Id. at 61-62.
The court of appeal rejected Vivano's ineffective assistance of counsel claim and reasoned as follows:
Ans. Ex. D at 15.
Vivano now urges that the court of appeal unreasonably applied the Strickland prejudice standard to the facts of this case.
I cannot agree that the court's ruling was an unreasonable application of Strickland. After concluding that "the circumstances contained in the 2001 incident report [were] unclear even with a careful review of the report," it found no prejudice because the report was "properly excluded." Ans. Ex. D at 15. The court of appeal thus concluded that even if the trial counsel had provided the information that Vivano now argues was necessary, that information would not likely have affected the trial court's finding that evidence of the Las Vegas incident was inadmissible. I cannot say its conclusion was objectively unreasonable.
Vivano argues that his trial counsel provided ineffective assistance of counsel in two instances, both related to the Las Vegas incident, and together these failures create cumulative prejudice that entitles him to relief. Pet. 29. He did not raise this claim in state court; accordingly, it is not exhausted. He attempts to show that by bringing the IAC claims individually, he "fairly presented" a cumulative prejudice claim. Traverse 14-15. But it is not sufficient to raise only the facts supporting the claim; rather, the legal basis for the claim must be brought to the attention of the state court. See Picard v. Connor, 404 U.S. 270, 277 (1971). Furthermore, "a petitioner does not exhaust all possible claims stemming from a common set of facts merely by raising one specific claim." Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th Cir. 2013) (internal citation omitted). Accordingly, it was not sufficient to present the IAC claims individually. Vivano has not exhausted the cumulative prejudice claim, and federal habeas review is barred.
Vivano argues that his appellate counsel provided ineffective assistance by failing to raise an IAC claim based on trial counsel's failure to object on confrontation ground to the trial court's limitation on cross-examination. Pet. 30. Vivano contends that his appellate counsel's decision to raise the confrontation claim directly rather than to argue IAC of trial counsel was objectively unreasonable and prejudicial. Id. at 30-31.
The Strickland standard governs IAC claims for appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Vivano raised this claim to the California Supreme Court in his habeas petition, which the court summarily denied. See Ans. Ex. J at 34-36, Ex. K. Accordingly, to succeed on this claim Vivano must show "there was no reasonable basis for the state court to deny relief." See Harrington, 562 U.S. at 98. He has not met this burden. First, as noted above, the court of appeal concluded that the limitation on cross examination did not violate Vivano's confrontation rights, which means that trial counsel was not objectively unreasonable for failing to raise a constitutional objection, which means that appellate counsel was not objectively unreasonable for failing to raise IAC of trial counsel on those facts. See supra Section II.A; Ans. Ex. D at 14-15; see also Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) ("Appellate counsel will . . . frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) . . . because she declined to raise a weak issue."). Vivano's claim for IAC of appellate counsel claim is denied.
The state court's adjudication of Vivano's claims did not result in decisions that were contrary to, or involved an unreasonable application of, clearly established federal law, nor did they result in decisions that were based on an unreasonable determination of the facts in light of the evidence present in the state court proceeding. Accordingly, the petition is DENIED.
The Clerk shall enter judgment in favor of respondent and close the file.